Dann on behalf of the Wajarri Yamatji (Part D) v State of Western Australia [2021] FCA 867

The determination area comprises two separate areas. The Part 1 area is unallocated Crown Land subject to an exploration licence. The Part 2 area is larger, extending southerly from the Woomeral River in the north over the Carrandibby Range. Combined, the areas cover 981 square kilometers. See Schedule One and Two for a detailed description and map of the area.

Registered on the National Native Title Tribunal on the Native Title Register.

WAD 278 of 2018

Between: Elvie Dann and others on behalf of the Wajarri Yamatji People (Applicant) and the State of Western Australia (Respondent)

WAD 373 of 2018

Between: Charles Snowball on behalf of the Wajarri Yamatji People (Applicant) and the State of Western Australia (Respondent)

Judge: Griffths J

Determination

Native title exists in parts of the determination area 

It consists of exclusive and non-exclusive native title rights and interests. 

Native title holders

Native title is held by the Wajarri Yamatji People.

Exclusive native title rights and interests exist over part of the determination area

Other than in relation to public works, the Wajarri Yamatji hold the common law right of possession, occupation, use, and enjoyment of the area, described in Schedule 3, to the exclusion of all others.

Non-exclusive native title rights and interests exist over part of the determination area 

These exist over the area described in Schedule 6 and include the right to:

• enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Non-exclusive area;
• hunt, fish gather, take and use the resources of the land; and
• engage in cultural activities on the non-exclusive area.

Non-native title rights and interests in the determination area include those held under:

• the Ballythunna, Yalardy, Gilroyd, Carey Downs, Talisker and Carey Downs Pastoral Leases;
• four mining tenements and portions of existing roads and tracks to allow access from time to time;
• valid State or Commonwealth grants;
• the Telstra Corporation, as the owner or operator of telecommunications facilities in the area.    

See Schedule 6 for further information about the non-native title rights and interests. 

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title

The Wajarri Yamatji Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Wajarri Yamatji People.

Full text of the determination is available via the URL link above.

Background

The area in question has been at the heart of three previous determinations, and eight applications. 

The first two applications made up the largest area and were decided in Wajarri Yamatji Part A. The six others concerned land outside of the first two applications.  

Applications 3-5 involved unallocated Crown Land (s 47B of the Native Title Act 1993 (Cth)). Application 3 claimed unallocated land adjacent to the land claimed in the first application. Applications 4 and 5 also involved land outside the border of the area claimed in the first application, and were subject to expired mining leases, granted under the provisions of the Mining Act 1978 (WA). Applications 4 and 5 had been made in uncertainty, because as previously section 47B of the Native Title Act 1993 (Cth) was considered to have extinguished native title where exploration permits had been granted. However, in 2019, the High Court confirmed that native title would not be extinguished under section 47B over areas subject to exploration permits (Tjungarrayi v Western Australia [2019] HCA).

The High Court's decision allowed the Wajarri Yamatji to make application 6 and for proceedings to commence for a determination of native title over the Part D area, which had been previously subject to mining exploration leases. 

Details of Judgment

In accordance with s 87 of the Native Title Act 1993 (Cth), the Court found it appropriate to make consent orders without holding a hearing. The Court was satisfied that mediation had successfully occurred between the two parties and that an agreement was reached in terms of the recognition of native title rights and interests held by the Wajarri Yamatji People [3]. The Court found that the Wajarri Yamatji People hold native title interests in the whole of the determination area. 

Native title exists in parts of the determination area.

Related Entries

Documents

Glossary